# Petition for Writ of Certiorari — Landreth ex rel. Ore v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 1042

## Text

88-772

In the Supreme Court of the
United States -

October Term, 1988

CARA LYN LANDRETH, a minor,
by and through her Guardian Ad Litem,
JOSEPH Y. ORE
Petitioner,
v.
UNITED STATES OF AMERICA

Respondent

ON WRIT OF CERTIORARI TO THEI
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LAW OFFICES OI
KU & FONG
H.G ROBERT FONG
609 S. Grand Avenue
Suite 1000
Los Angeles, California 90017
Telephone. (213) 488-1400
dfform for Petitioner
(CARA TILIYNIANDRETH

Westside Law Publishers Los Angeles, California (213) 477-0491

QUESTIONS PRESENTED

Where an infant has been injured by the medical
malpractice of the government, and where the medical
malpractice also spawns a legally cognizable conflict of
interest in the infant’s parents which would disqualify
them from representing the infant in a claim for damages
for such malpractice,

1. When does the claim accrue under the Federal Tort
Claims Act for purposes of the statute of limitations
under 28 U.S.C. Section 2401(b)?

2. Does a neutral guardian ad litem with no conflict
of interest have to be appointed before the infant’s claim
accrues for purposes of 28 U.S.C. 2401(b)?

3. To bar the infant’s claim, is it permissible under
the due process and equal protection clauses to impute
to and against her (1) the knowledge of her parents to
begin the accrual of the claim and (2) their failure to
file a timely claim?

4. Is there any rational basis for discriminating against
the infant by imputing to the infant the knowledge of
her parents and their failure to file a timely claim, when
an adult in the same position would not be so
disadvantaged?

5. Is the government constitutionally estopped from
asserting the statute of limitations before a neutral
guardian is appointed?

TOPICAL INDEX

Page
Questions Preserted ae
Topical Index | f. i
Table of Authorities | . ill
Opinion Below l
Jurisdiction 2
Statutory Provisions Involved 2
Statement Of The Case .......... | essnuenaeea a
Reasons For Granting The Writ 5

The Holding Below Transgresses The Traditional
Role Of The Courts To Avoid Injustice And
Absurd Consequences | 6

Il.

Reversal Is Required To Avoid Violations Of Due

Process And Equal Protection Of Minors......... 7
A. The Holding Violates Due Process.............. en
B. The Holding Violates Equal Protection...... cane

C. The Holding Below Conflicts with Holdings
of the Supreme Court, The Seventh Circuit,
and the California Supreme Court................. 10

D. The Purpose for 28 U.S.C. Section 2401(b) is
Not Necessarily Advanced by the Ruling
Below oat Seem wicsunoseadeskudkusbascass 12

Conclusion . See

Appendix A ... Al

iV

TABLE OF AUTHORITIES CITED

Cases Page

Ash v. Mortensen, 24 Cal. 2d 654 at 657 (1944)........ 5
Chevron Oil Co. v. Huson, 404 U.S. 97 at 107-

ITE coxcducanbcdaechnnt Stonseasntimatte snienmceneonas 11
Chicago Rock Island & Pacific Ry. Co. v. United

States, 220 F.2d 739 (7th Cir. 1955) ............... 13

Clark v. Halstad, 93 N.Y.S.2d 49 (1949) ............ 5, 13
Clark v. Jeter, __. U.S. —— 56 U.S. Law Week

4527; 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) .... 8
Commodity Futures Trading Comm’s v. Schor, 478

ie Gy), ee eepibakeeaescnuseeaaceanauan i}
Crowell v. Benson, 285 U.S. 22 (1932).................. 11
Dundon v. United States, 559 F.Supp. 469

SRI MEIN nud coeds cadhanansaceshucisebsebesdases 10
Herrero v. Atkinson, 227 Cal.App.2d

I cata dakckcasiankigunded accecdsananaaestecanee 5, 13

In re Chicago, Rock Island and Pacific Railroad
Company, 788 F.2d 1280 (7th Cir. 1986)...... 8, 12
Logan v. Zimmerman Brush Co., 455 U.S. 422

(DRE ne ey ry ey ae Ne ey 8
Mills v. Habluetzel, 456 U.S. 91 (1982) .................. 8
Pardy v. United States, 575 F.Supp. 1078 (S.D.

ul; SEE 2-0 .4 a tcowiabpedueanceeduanaiauamehasmhecness 10
People ex. rel Dept. of Transportation v. Superior

Court, 26 Cal. 3d 744 at 751 (1980)................ 13
ys. pe © eis ee Th | errr 11
Sorrells v. United States, 287 U.S. 435

I --) osucul eae aaebaaseaenrnssanbenaaesseeaed 6

United States v. Kubrick, 444 U.S. 111 (1979)..... 7,13
United States v. 1,960 Bags of Coffee, MD., 8 Crach

se cy ME EE oak cnt asdacnrnccectaccsdtenses 7
Washington v. United States, 769 F.2d 1436 (9th
Re ho re tase oe ca a eepseperaaenes 10

ee

Weber v. Aetna Casualty & Surety Co., 406 U.S.

Ate ai ee 12
Young v. Haines, 41 Cal.3d 883 (1986) ................. 12
Zeidler v. United States, 601 F.2d 527 (10th Cir.

POPU. cxiviasvisesdesaeudaceell tee 10

Statutes

California Civil Procedure

etre terre ation tig toler any 13
28 U.S.C.

mbt BIRO E: «. <sc<cnccckestddeeusineeeeeeee 2

Section 2401(b)................ 2, 4, 5, 8, 9, 10, 12, 13

No.

In the Supreme Court of the
United States

October Term, 1988

CARA LYN LANDRETH, a minor,
by and through her Guardian Ad Litem,
JOSEPH Y. ORE.
Petitioner,
V.
UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

The opinion of the Ninth Circuit Court of Appeals,
which ts reported, appears in Appendix A.

JURISDICTION

The Ninth Circuit entered its judgment and opinion
on June 23, 1988. Petitioner timely filed her Petition
for Rehearing and suggestion for hearing en banc on
July 7, 1988. The Ninth Circuit entered its order denying
the Petition for Rehearing and rejecting the hearing en
banc on September 26, 1988. On October 14, 1988 the
Ninth Circuit granted Petitioner’s motion to stay the

mandate to November 4, 1988. Petitioner filed her
Petition for Writ of Certiorari within ninety days of
the of denial of the Motion for Rehearing. This Court’s
jurisdiction is invoked under 28 U.S.C. Section 1254(1).

STATUTORY PROVISIONS INVOLVED

25 U.S.C. Section 2401(b). Time for commencing
action against United States.

(b) A tort claim against the United States shall
be forever barred unless it is presented in
writing to the appropriate Federal agency
within two years after such claim accrues or
unless action is begun within six months after
the date of mailing, by certified or registered
mail, of notice of final denial of the claim by
the agency to which it was presented. 28 U.S.C.
Section 2401(b)

STATEMENT OF THE CASE

This is a medical malpractice action arising under the
Federal Tort Claims Act. It is brought by a minor
plaintiff, Cara Lyn Landreth, through a non-parental
guardian ad litem. The claim stems from events occurring
at Plattsburg Air Force Base in New York when Cara
was less than one year old.

On the morning of March 30, 1973, Cara’s parents
were negligent in “leaving medicine in the reach of
children.” As a result of the negligence,' Cara ingested
an unknown amount of Quibron,’ a prescription asthma

'The United States admitted to such negligence in responses to
requests to admit.

*Quibron is highly toxic at high blood serum levels, but its effects
can be counteracted by anti-seizure medications.

medication taken by her mother, Jennie Landreth.
Although her mother found her swallowing the
medication in time to rush her to the base hospital, the
Air Force failed to remove the Quibron from her system.
The Air Force medical personnel also failed to keep
her for observation to determine if she needed anti-
seizure medication to counteract the Quibron. Instead,
the military physician in charge, Dr. Bruce M. Smith,
handed over her care to two “medical technicians” who
were instructed by him to administer 15 cc’s of ipecac,
reassure the parents, and send them home. Eight to ten
hours later, Cara went into seizures.

Cara was then rushed back to the base hospital and
later admitted into Montreal Children’s Hospital, where
she was hospitalized for six days and then discharged
as “normal.” The discharge was without benefit of the
results of an EEG, which showed abnormal brain waves.’
For the next two years, while Cara’s father remained
in the Air Force, she was treated by the Air Force for
learning difficulties and emotional problems. The Air
Force failed to perform any neurological workup during
the two years. The Air Force medical records state that
the Quibron “ingestion resolved without obvious
sequelae.” -

Petitioner alleges that the medical malpractice of the
military physician, who abandoned her to take care of
his car, negligently caused her to sustain permanent brain
damage which was not identified and medically linked
to the Quibron ingestion until 1977 or 1978. By that
time, Cara’s parents were divorced and Jennie Landreth

‘Cara’s representatives did not even discover these abnormal
findings until suit was filed, as the Air Force and the Landreths
never received these findings until then.

had sole legal custody. Neither parent filed a medical
malpractice claim on Cara’s behalf.

The conflict of interest between Cara and her parents
required that the action to be brought by a non-parental
guardian ad litem, Mr. Joseph Y. Ore. As a matter of
law, her parents would be liable for the results of the
malpractice, since the law deems malpractice a
foreseeable consequence of their negligence.

Cara, through her attorney, filed an FTCA adminis-
trative claim dated September 6, 1983 alleging the Air
Force was negligent. The Air Force rejected the claim
on May 15, 1984, finding the claim was time barred.

On November 7, 1984 the guardian ad litem was
appointed for Cara and suit was filed in the district
court. The complaint alleged, among other things, that
barring her action by imputing to Cara her parents’
failure to file a claim would violate due process and
equal protection. Subsequently, the United States filed
a motion for summary judgment. The district court held
the suit was barred by the two-year statute of limitations
under the FTCA, 28 U.S.C. Section 2401(b) and
dismissed the action.

The Ninth Circuit Court of Appeals, in a split decision
filed on June 23, 1988, affirmed the district court's ruling
dismissing Cara’s lawsuit. The majority held that Cara's
claims were not “of constitutional proportion,” and that
the legally cognizable conflict of interest held by her
parents neither prevented the fictional imputation of
necessary knowledge to her to begin accrual of her claim,
nor relieved her of the duty to file a claim within two
years of that accrual.

REASONS FOR GRANTING THE WRIT

The judicial task below was to interpret 28 U.S.C.
Section 2401(b) in a medical malpractice case involving
a brain damaged infant, where the infant claimed that
the government’s malpractice caused both her brain
damage and spawned a conflict of interest‘ between her
and her parents. The resultant rulings are a dangerous
precedent in that they fail to recognize that minors hold
constitutional rights independent of their parents, and
they unnecessarily deprive Cara of due process rights
afforded to adults in the same situation.

The courts below should have found that the statute
of limitations had not run for any of the following
reasons.

1. The court’s traditional role to interpret the
law to prevent injustice, whenever possible,
dictated a holding that Cara’s claim was not
time barred.

2. The due process clause prevented imputing
to Cara any failure of her parents’ to file a
claim.

3. Since adults in Cara’s position would not
be time barred, and there was no rational basis
under equal protection requirements for
discriminating against Cara solely because of
her minority status, the statute had not run.

“See dissent, below; Ash v. Mortensen, 24 Cal. 2d 654 at 657 (1944),
Clark v. Halstad, 93 N.Y .S.2d 49 (1949). Note that while the parents
could seek indemnity from the United States under Herrero v.
Atkinson, 227 Cal.App.2d 69 (1964), they are not assured of such
indemnity. Additionally, Cara would not be able to prevent them
from either defaulting on a complaint by her against them, force
them to file against the United States, or forego a bankruptcy.

4. Cara’s claim was clearly protected under the

due process and equal protection clauses as
“property”; hence her claims were of constitu-
tional proportions and subject to constitutional
protection.

5. The principles and analyses set forth in
decisions of the United States Supreme Court,
the Seventh Circuit and California Supreme
Court dictated a ruling in favor of Cara.

Rather than accepting common sense and citing these
compelling reasons for holding that the statute of
limitations had not run, the majority denied all relief.
In doing so, they violated well established principles set
forth in Supreme Court decisions; disregarded a
constitutional analysis accepted by the Seventh Circuit;
ignored a unanimous holding by the California Supreme
Court; and simply held that Cara’s claim was not “of
constitutional proportions.” They found her parents’
conflict of interest was of no consequence, and that,
although they were not “unsympathetic to Cara’s
condition,” they would not follow a sensible construction
of the statute of limitations to avoid forfeiture of her
claim.

As shown below, common sense and well established
precedents dictate a reversal.

THE HOLDING BELOW TRANSGRESSES
THE TRADITIONAL ROLE OF THE COURTS
TO AVOID INJUSTICE AND ABSURD
CONSEQUENCES

One of the traditional functions of the courts is to
construe statutes so as to avoid absurd or glaringly unjust
results, foreign to legislative purposes. Sorrells v. United
States, 287 U.S. 435, 450 (1932).

“Literal interpretation of statutes at the expense
of the reason of the law and producing absurd
consequences or flagrant injustice has fre-

quently been condemned.” /d. at 446.

Although the majority below was sympathetic to
Cara’s condition, it compounded the injustice to her by
depriving her of her claim for compensation for the
permanent damage to her brain. This was done by
holding that she had “slept on her rights.” The Supreme
Court has repeatedly found that the legislature intends
exceptions to its language to avoid such results. Id. at
447-448. The holdings below represent a sharp departure
from established tenets of statutory construction.

Instead of straining in an attempt to avoid injustice,
the majority strained to fit this case into the statute
of limitation rule in United States v. Kubrick, 444 U.S.
111 (1979) by holding through a /egal fiction that Cara
both knew of her injury and the cause thereof so that
her claim accrued when her parents had this knowledge.
The majority used the fiction of imputing her parents’
knowledge and their delays to bar her action, ignoring
the following venerated principle of law:

“It seems to be a rule founded in common sense,
as well as strict justice, that fictions of law shall
not be permitted to work any wrong, but shall
be used ut res magis valeat quam pereat, . .
and this rule, so equitable in itself, seems
recognized in the common law.”

United States v. 1,960 Bags of Coffee, MD..,
8 Crach 398, 415, 3 L.Ed. 602 (1814).

The rulings below could only have resulted
from a failure to consider fundamental!
guidelines controlling the role of the courts.

i

REVERSAL IS REQUIRED TO AVOID VIO-
LATIONS OF DUE PROCESS AND EQUAL
PROTECTION OF MINORS

A. The Holding Violates Due Process.

The Supreme Court has repeatedly and without
hesitation overturned statutes of limitations which it has
determine violate the due process and equal protection
rights of illegitimate minors. In a series of cases from
Mills v. Habluetzel, 456 U.S. 91 (1982) to Clark v. Jeter,
__. U.S. ___; 56 U.S. Law Week 4527; 108 S.Ct. 1910,
100 L.Ed.2d 465 (1988), the Court uniformly held that
statutes of limitation which effectively apply against
minors must now be scrutinized under heightened due
process and equal protection standards. The rationale
in those cases applies here.

Cara’s due process and equal protection arguments
are based on the fact that the lower courts’ interpretation
of 28 U.S.C. Section 2401(b) provides her with illusory
due process at best, because it allows the statute to run
against her, when her parents have a conflict of interest.
Adults in the same position would not be so
disadvantaged.

The Seventh Circuit recently analyzed a similar
circumstance involving the running of the statute of
limitations for filing a minor's claim in bankruptcy. /n
re Chicago, Rock Island and Pacific Railroad Company,
788 F.2d 1280 (7th Cir. 1986). There the minor argued
that the statute should be tolled during his minority.
In marked contrast to the majority opinion below, the
court felt compelled to address the due process issue,
since Logan v. Zimmerman Brush Co., 455 U.S. 422,
428-31, (1982) expressly treats a cause of action as

“property” within the meaning of the Constitution’s due
process clauses. In a situation strikingly similar to the
case at bar, but where there was no conflict of interest,
the court held that the minor’s due process rights were
not violated, since he was represented by his mother.
The following language by Judge Posner is instructive:

“Granted, for the government to create a right
of action but then erect an insuperable barrier
to its being vindicated by a particular class of

claimants, such as minors, might in some
circumstances be so unreasonable as to raise

questions of due process - but not in the
circumstances of this case. Dyche is content
with a rule that requires the minor to sue during
his minority, provided only that the court
appoints a guardian ad litem; and we think
the parent who has custody of the minor
(Dyches’s mother, in this case - she was either
divorced from his father or widowed, the record
does not show which, but in any event she had
remarried and had custody of Dyche) is a
constitutionally adequate substitute, so Jong as
there is no showing of a conflict of interest.”
Id. at 1281-2 [Emphasis added].

Cara falls within the caveat enunciated by Judge Posner,
since she had a governmentally created right of action
with an insuperable barrier consisting of her minority
and the parental conflict of interest with her parents
“erected” by the government’s malpractice.

B. The Holding Violates Equal Protection.

Adults in the same position as Cara would be afforded
Due Process and would have their claims tolled during
their disability, when their injuries and disabilities are
caused by the government’s medical malpractice. In

10

Washington v. United States, 769 F.2d 1436 (9th Cir.
1985), Zeidier v. United States, 601 F.2d 527 (10th Cir.
1979), Pardy v. United States, 575 F.Supp. 1078 (S.D.
Ill. 1983), and Dundon v. United States, 559 F.Supp.
469 (E.D.N.Y. 1983), the courts uniformly held that adult
victims of malpractice, who could not know and
appreciate their injury and the cause thereof, would not
lose their claims under 28 U.S.C. Section 2401(b) during
the term of their disability, even though a spouse or
relative could have been appointed as a conservator or
guardian ad litem to file a claim for them. Because of
the conflict of interest clearly established in the record
below, Cara was ina position no different than the adults
in these cases. There is no rational basis for discrim-
inating against her, just because she is a minor.

C. The Holding Below Conflicts with Holdings
of the Supreme Court, The Seventh Circuit,
and the California Supreme Court

The case involves such a departure from well-rooted
jurisprudential doctrines and cardinal principles of
statutory construction, that it must be overturned, or
else it will serve as authority for permitting the use of
fictions to interpret a statute, resulting in injustice and
absurdity, even when the ultimate purpose of the statute
is not likely to be served.

The task below was to construe 28 U.S.C. Section
2401(b) in a manner consistent with the Constitution.

“When the validity of an act of the Congress
is drawn in question, and even if a serious doubt
of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain
whether a construction of the statute is tairly
possible by which the question may be

avoided.” Crowell v. Benson, 285 U.S.22. 62
(1932).

While the Court may not pervert the purpose of a
Statute or judicially rewrite it, federal statutes are to
be so construed as to avoid serious doubt of their
constitutionality. Commodity Futures Trading Comm'’s
v. Schor, 478 U.S. 833, 841 (1986). When they cannot
be so construed, they are declared unconstitutional.
Hence, the Court has found it necessary to hold as void,
statutes of limitation as long as six years for determining
paternity Clark v. Jeter, supra. Cara does not seek such
a drastic remedy, but only a holding that where there
is a legally cognizable conflict of interest between parent
and child, and where the conflict arises from the acts
giving rise to the claim, the statute is tolled until a neutral
guardian ad litem is appointed. Cara could not file a
claim for herself during her minority; this had to be
done through a guardian ad litem or friend. Holding
that Cara’s rights and the filing of the claim by a guardian
ad litem were retroactively barred by her parents’ failure
to file a claim smacks of the type of anomalous
retroactive time bars repudiated by the Court in Chevron
Oil Co. v. Huson, 404 U.S. 97 at 107-8 (1971). A ruling
against Cara would be a ruling that she had “slept on
her rights” when through no fault of her own she could
not have known of the time limitation and could not
have filed a claim. Moreover, visiting the failures of
her parents on her would be unjust and would not
comport with fundamental conceptions of justice. Plyer
v. Doe, 457 U.S. 202 (1981).

“[V]isiting ... condemnation on the head of
an infant is illogical and unjust. Moreover,
imposing disabilities on the ... child is

contrary to the basic concept of our system
that legal burdens should bear some relation-

12

_ ship to individual responsibility or wrongdoing.
Obviously, no child is responsible for his birth
and penalizing the. . . child is an ineffectual—
as well as unjust— way of deterring the parent.”
Weber v. Aetna Casualty & Surety Co., 406
U.S. 164, 175 (1972) (footnote omitted).

The Seventh Circuit’s analysis in /n re Chicago, Rock
Island and Pacific Railroad Company, 788 F.2d 1280,
supra. would compel a ruling in favor of Cara. So would
the unanimous ruling by the California Supreme Court
in Young v. Haines, 41 Cal.3d 883 (1986). There the
court found that it would be constitutionally impermiss-
ible to interpret a statute of limitations against minors
by denying them the benefit of tolling afforded to adults
in malpractice cases. The court did not hesitate in
rejecting, under due process and equal protection
principles, a literal reading of the statute which would
have so discriminated against minor plaintiffs. /d. at
888-9.

D. The Purpose for 28 U.S.C. Section 2401(b)
is Not Necessarily Advanced by the Ruling
Below.

If the court's decision is not reversed, Cara will be
forced to sue her parents for negligence. This is an
onerous condition for vindicating her rights. It may or
may not result in her parents bringing in the United
States on a third party claim for indemnity.

Under both California and New York law, Cara’s
parents would have the right to an action for indemnity

‘In this case, “deterring” parents from delaying the filing of a claim
could result in their being found totally liable for the entire claim.
This potential conflict of interest would nullify of any such
deterrence.

13

against the government. Herrero v. Atkinson, 222 Cal.
App. 2d 69 (1964); Clark v. Halstad, 276 A.D. 17; 93
NYS 2d 49 (1949). This cause of action would permit
Cara’s parents to seek total indemnity against the
government for the malpractice performed on Cara, for
which they would be legally liable. /d. It is settled that
a cause of action for implied indemnity does not accrue
or come into existence until the indemnitee has suffered
actua! loss through payment. People ex. rel Dept. of
Transportation v. Superior Court, 26 Cal. 3d 744 at
751 (1980). The rule applies to governmental tort claims
against the United States. Chicago Rock Island & Pacific
Ry. Co. v. United States, 220 F2d 739 (7th Cir. 1955).
Hence, the provisions of 28 U.S. § 2041(b) would not
bar an action for indemnity.

Given the law of indemnity and given the fact that
the statute of limitations has not yet accrued on an
indemnity action by Cara’s parents, Cara could seek
indirect relief from the government by suing her parents.
That action is tolled until she reaches majority. Cal.
C. Civ. Proc. § 352. An action against her parents,
however, would be an abhorrent condition for enforcing
her rights, especially given the already strained
circumstances between the family members. Certainly,
an unjustified application of a legal fiction should not
be used to force her to sue her parents, she can indirectly
avoid 28 U.S.C. § 2401(b).

CONCLUSION

Petitioner submits that the Court should grant a
hearing on this matter to harmonize United States v.
Kubrick, 444 U.S. 111 (1979) with the due process and
equal protection rights of Petitioner.

Respectfully submitted,
H.G. ROBERT FONG

LAW OFFICES OF
KU & FONG

Attorneys for Petitioner
CARA LYN LANDRETH

APPENDIX

Al

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Cara Lyn LANDRETH, a minor, by |
and through her Guardian Ad

Litem, Joseru Y. Ore, No. 86-5732
Plaintiff-Appellant, D.C. No.
; r CV-84-8618-LEW
OPINION

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Laughlin E. Waters, District Judge, Presiding

Argued and Submitted
March 7, 1988—Pasadena, California

Filed June 23, 1988

Before: Jerome Farris and Stephen Reinhardt, Circuit
Judges, and Howard D. McKibben,* District Judge.

Opinion by Judge McKibben, Dissent by Judge Reinhardt

SUMMARY

Governmental Torts
Appeal from judgment dismissing a suit under the FTCA as

*Honorable Howard D. McKibben, United States District Judge. Dis-
trict of Nevada, sitting by designation

7467
Appendix A

eeetienenede ieee

A2

7468 LANDRETH V. UNITED STATES

time-barred. The court affirmed holding that Cara’s claim
was not timely filed nor was the statute of limitations for fil-
ing the FTCA claim tolled until a guardian without a conflict
of interest appointed.

In 1973, appellant Cara Landreth swallowed her mother’s
quibron medication. Doctors failed to pump the child's stom-
ach. In 1977 or 1978, a brain scan determined that Cara had
suffered brain damage as a result. During 1979, Jennie, Cara's
mother, told a doctor that Cara’s problems were partially
attributable to her ingestion of quibron. The Air Force
rejected Cara's administrative claim in 1984, finding the
claim time barred. Later that year, a guardian ad litem was
appointed for Cara and suit was filed in district court. The
district court found that suit barred by the two-year statute of
limitations under the FTCA and dismissed the action.

{1} A tort claim against the United States must be filed
within two years after the claim accrues. In a medical mal-
practice case under the FTCA, a claim accrues when the
plaintiff discovers, or in the exercise of reasonable diligence
should have discovered, the injury and its cause. [2] The
record supports the district court's finding that Cara's parents
knew or should have known of their daughter's injury and its
cause no later than 1979. [3] Nevertheless appellant argues
that Jennie Landreth may have been partially responsible for
Cara's injuries. Therefore, appellant maintains both Jennie
and William Landreth, her parents, had a conflict of interest
in pursuing this claim. Appellant contends the statute of limi-
tations for filing the FTCA claim was tolled until a guardian
without a conflict of interest was appointed for Cara. [4] In
this case, more than ten years elapsed between the alleged
negligent acts of the government and the filing of the adminis-
trative claim. It is precisely this type of delay the limitation
provision of the FTCA was designed to guard against. Princi-
ples of equity cannot be invoked to toll the accrual date of
plaintiff's injury for statute of limitations purposes.

A3

LANDRETH V. UNITED STATES ; 7469

The dissent argues that the majority not only decides
Cara’s constitutional claims prematurely: it also brushes over
the fundamental constitutional questions by relying on a case
in which no cognizable conflict of interest existed.

COUNSEL

H.G. Robert Fong, Ku & Fong, Los Angeles, California. for
the plaintiff-appellant. ~

Shari Silver, Assistant United States Attorney, Los Angeles,
California, for the defendant-appellee.

OPINION
MCKIBBEN, District Judge:

Plaintiff, Cara Lyn Landreth, by her guardian ad litem,
appeals from a judgment dismissing her action against the
United States under the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346(b), 2671 et seq. We affirm.

I. FACTS AND PROCEDURAL POSTURE

During the morning of March 30, 1973 Cara Lyn Landreth,
who was then eleven months old, swallowed a portion of her
mother’s quibron medication. Her mother, Jennie Landreth,
and her father, William Terry Landreth, who was a member
of the United States Air Force rushed her to the Plattsburgh
Air Force Base Hospital. No physician examined Cara at the
emergency room. Jennie Landreth heard a physician instruct
an orderly to give Cara 15 cc. of ipecac and then send her
home. The ipecac was administered and the Landreths
returned home. That evening Jennie noticed Cara’s eyes had
rolled back and she was convulsing. Cara was immediately

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7470 LANDRETH V. UNITED STATES

taken back to the Plattsburgh hospital by her parents. She was
then transferred to the Montreal Children’s Hospital where
she remained hospitalized for six days. The medical person-
nel at the Montreal hospital told the Landreths that Cara’s
seizures were due to the quibron ingestion and that her stom-
ach should have been pumped at the Plattsburgh hospital
when she was first taken there.

When Cara was fifteen months old, Jennie noticed she was
easily angered and had temper tantrums. At eighteen months
Jennie noticed Cara’s communication skills were retarded. A
base doctor in the Philippines where William was stationed
recommended that Cara be examined by a specialist.

In 1977 or 1978, Jennie took Cara to the UCLA Neuropsy-
chiatric Institute where a doctor performed a brain scan on
Cara and determined she had suffered brain damage as a
result of the ingestion of quibron.

Prior to 1979 both William and Jennie Landreth frequently
discussed their belief that the Air Force was responsible for
Cara’s problems because the doctors failed to pump Cara’s
stomach on the morning she consumed the quibron.

During 1979 Jennie told a doctor at the UCLA Neuropsy-
chiatric ward that Cara’s problems were partially attributable
to her ingestion of quibron.

Plaintiff filed an administrative claim dated September 6,
1983 under the FTCA alleging the Air Force was negligent.
The Air Force rejected the claim on May 15, 1984, finding the
claim was time barred.

On November 7, 1984 a guardian ad litem was appointed
for Cara and suit was filed in district court. The United States
filed a motion to dismiss and for summary judgment. The dis-
trict judge trifurcated the statute of limitation issue from the
issues of liability and damages. After argument, the district

AS

LANDRETH V. UNITED STATES 7471

court held the suit was barred by the two-year statute of limi-
tations under the FTCA, 28 U.S.C. § 2401(b) and dismissed
the action.

Cara Landreth appeals, contending that (1) her parents did
not know or have reason to know of the existence of facts
establishing the government's responsibility for her condition
until a period within two years of the filing of her claim, or (2)
the statute was tolled until a guardian ad litem, without a con-
flict of interest, was appointed to represent her.

Il. DISCUSSION

[1] Under 28 U.S.C. § 2401(b), a tort claim against the
United States must first be presented to the appropriate fed-
eral agency within two years after the claim accrues before a
negligence suit may be instituted. Failure to do so is a juris-
dictional defect. Augustine v. United States, 704 F.2d 1074,
1077 (9th Cir. 1983). The date on which a claim accrues is
determined by federal law. Washington v. United States, 769
F.2d 1436, 1438 (9th Cir. 1985). In a medical malpractice
case under the FTCA, a claim accrues when the plaintiff dis-
covers, or in the exercise of reasonable diligence should have
discovered, the injury and its cause. See United States v.
Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L.Ed.2d 259 (1979):
Colleen v. United States, No. 86-4232, slip op. at 3870 (9th
Cir. April 1, 1988); Davis v. United States, 642 F.2d 328, 331
(9th Cir. 1981). Plaintiff need not be aware that an actionable
claim exists as long as she is aware of the injury and its proba-
ble cause. United States v. Kubrick, supra.

The district court's grant of summary judgment is reviewed
de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.
1986). Review is governed by the same standard used by the
district court under Fed. R. Civ. P. 56(c). Jd. We must deter-
mine, viewing the evidence most favorable to plaintiff.
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant sub-

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7474 LANDRETH V. UNITED STATES

Pittman court, in considering and rejecting this argument,
said:

Appellant also bears down heavily on the father’s
earlier supposed conflict of interest which may have
led him to subordinate and thus pass over the inter-
est of the son. Again, on this argument we think the
congressional intent is that the Congress just did not
want stale claims lying around under the Federal
Tort Claims Act.

341 F.2d at 741-42. The Pittman court also rejected the due
process and equal protection claim, stating:

Plaintiff contends that roughly 40 percent of the
nation’s population is under the disability of minor-
ity and that to deprive them of rights (because of the
possibility that no adult will initiate proceedings)
violates due process and equal protection when
adults can go vindicate their own rights. We find no
cases supporting such a proposition.

341 F.2d at 741.

The FTCA is a limited waiver of sovereign immunity. The
purpose of the two-year limitation provision of Section
2401(b) is to encourage the expeditious disposition of claims.
As the Supreme Court stated in United States v. Kubrick:

These enactments are statutes of repose; and
although affording plaintiffs what the legislature
deems a reasonable time to present their claims, they
protect defendants and the courts from having to
deal with cases in which the search for truth may be
seriously impaired by the loss of evidence, whether
by death or disappearance of witnesses, fading mem-
ories, disappearance of documents, or otherwise.

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LANDRETH V. UNITED STATES 7475

444 US. at 117 (citations omitted).

[4] Here more than ten years elapsed between the alleged
negligent acts of the government and the filing of the adminis-
trative claim. It is precisely this type of delay the limitation
provision of the FTCA was designed to guard against. While
the court is not unsympathetic to Cara’s condition, principles
of equity cannot be invoked to toll the accrual date of plain-
tiffs injury for statute of limitations purposes. Washington v.
United States, 769 F.2d at 1439; Burns v. United States, 764
F.2d 722. 724 (9th Cir. 1985). Congress has clearly mani-
fested its intent that there must be prompt disposition of
FTCA claims. This court does not, as the Pittman court did
not, find the plaintiff's claims to be of constitutional propor-
tion. Therefore it should be left to the Congress and not this
court to provide for the tolling of the statute if policy consid-
erations suggest that it should do so.

For the reasons set out above the court concludes that this
action is barred under 28 U.S.C. § 2401(b).

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

I dissent because I believe the majority has erred in its
treatment of appellant’s constitutional claims.

The quibron that caused Cara’s brain damage and resultant
seizures and behavioral problems was prescribed for the
treatment of her mother’s asthma. On the morning of March
30, 1973. when Cara swallowed the quibron, Jennie Landreth
had left her unsupervised and had also left the quibron within
her reach. Under New York law,’ Cara could have had an

‘Since the Landreths were residents of New York at the time of Cara's
injury, the allegedly negligent acts occurred in New York, and the medical
personnel practiced in New York, New York law governs this case.
4 ashington v. United States. 769 F.2d 1436. 1438 (9th Cir. 1985).

ee

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7476 LANDRETH V. UNITED STATES

action for negligence against her mother. See Gelbman v. Gel-
bman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529
(1961) (eliminating defense of intrafamilial immunity for
nonwillful torts).2, Moreover, in any malpractice action
brought on Cara’s behalf, Jennie could have been subject to
a counterclaim or to indemnification. See Goedkoop v. Ward
Pavement Corp., 51 A.D.2d 542, 378 N.Y.S.2d 417 (App.
Div. 1976) (action for injuries sustained by infant as result of
blasting cap explosion; court allowed counterclaim against
infant’s father for indemnification, alleging father negligently
maintained blasting caps in basement).

Appellant argues that her parents had a conflict of interest
because of their own potential liability and that, as a result,
the statute of limitations on her FTCA claim could not begin
to run until a neutral guardian ad litem was appointed for her.
She contends that to let the statute run while the power to
assert her claim lay solely with her parents deprives her of her
due process and equal protection rights. These are important
constitutional claims; yet the majority disposes of them
unnecessarily and without meaningful consideration.

The majority relies exclusively on our holding in Pittman
v. United States, 341 F.2d 739 (9th Cir. 1965). Pittman
involved an accident which occurred on a Navy installation.
The victim, nine-year-old Mark, argued on constitutional
grounds that minority should toll the FTCA statute of limita-
tions; we rejected that argument. /d. at 741. Mark further
argued that his father, a Navy lieutenant commander, had a
conflict of interest “because he feared litigation involving his
own branch of the service might prejudice his advancement,”

2New York does not recognize a cause of action for negligent parental
supervision. Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338, 364
N.Y.S.2d 859 (1974). However, an action against Cara's mother alleging
that she negligently left the medication within Cara’s reach would have
been allowed. See Goedkoop v. Ward Pavement Corp., $1 A.D.2d 542, 378
N.Y.S.2d 417 (App. Div. 1976) (allowing action against injured infant's
father for negligently maintaining explosives).

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LANDRETH V. UNtTEeD STATES 7477

and that he therefore delayed filing the action on Mark's
behalf. Jd. We disposed of that argument in two sentences,
noting simply that “Congress just did not want stale [FTCA]
claims lying around.” /d. at 741-42.

There is no indication in Pittm7n that Mark's conflict of
interest argument was based on constitutional grounds, or
that we rejected it on those grounds. For that reason alone,
the majority errs in relying on that case. But even if we read
Pittman as a constitutional holding on the conflict of interest
question, it would be distinguishable. Mark’s father allegedly
delayed bringing suit because he feared prejudice to his naval
career. There is a difference, however, between speculation
about possible damage to career goals and direct financial lia-
bility. The former may be a practical reason for avoiding liti-
gation, but not all practical concerns rise to the level of a
conflict of interest. When the possibility of harm is as remote
and tenuous as it was in the case of Mark’s father, it is not suf-
ficiently serious to constitute a conflict—and, thus, to over-
come the policy favoring prompt disposition of FTCA claims.
Here, by contrast, Cara's mother faced the prospect of direct
financial liability were she to file a claim on Cara's behalf.
Thus the difficult constitutional issues Cara raises cannot be
considered settled by Pittman.

The existence of a direct conflict of interest on her mother’s
part may, as a matter of law, have precluded Cara from hav-
ing a fair opportunity—the opportunity an adult in her cir-
cumstances would have—to file an action against the
allegedly negligent medical personnel who treated her. Thus,
Cara may have been deprived of her due process and equal
protection rights. However, we need not, and should not,
resolve these constitutional issues here. The Supreme Court
has directed us to avoid deciding such questions before it is
necessary to do so. Kolender v. Lawson, 461 U.S. 352, 361
n.10 (1983); Mills v. Rogers, 457 U.S. 291, 305 (1982). In this
case, there remain factual and legal questions, the answers to
which may make it unnecessary for us to decide Cara’s con-

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7478 LANDRETH V. UNITED STATES

flict of interest claim. Specifically, the government argues that
even if Jennie was potentially liable for Cara’s injury, Cara’s
father Terry Landreth was not, and that he could have
brought the action on Cara’s behalf. We cannot judge the
validity of this argument without knowing whether, under
New York law, Terry was financially liable for Jennie’s negli-
gence, when Terry and Jennie were divorced; and whether
Terry had the authority to file an action on behalf of Cara sub-
sequent to the divorce. The majority proceeds to reject Cara’s
constitutional claims without waiting for this information.
Because it may be that Cara’s claims can be disposed of on
narrower grounds, the majority's decision violates an estab-
lished tenet of judicial review. Cara’s action should be
remanded to allow the district court to make the factual and
legal determinations that would have permitted a resolution
of the government's non-constitutional argument.

Cara suffers from permanent brain damage which may be
traceable to one or both of two causes: her mother’s negli-
gence and the negligence of the Air Force medical personnel
who treated her. Despite the potential liability of her parents,
the majority relies on them to vindicate Cara’s claim and, in
effect, holds Cara responsible for their failure to do so. As a
consequence, Cara may be deprived of her due process and
equal protection rights—a result that cannot be justified by
invoking Congress’ desire to resolve FTCA claims promptly.
The majority not only decides Cara’s constitutional claims
prematurely; it also brushes over the fundamental constitu-
tional questions by relying on a case in which no cognizable
conflict of interest existed, and a holding that was not based
on constitutional grounds. I would remand Cara’s action for
resolution of the factual and legal issues described above. I
therefore respectfully dissent.

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PROOF OF SERVICE BY MAIL
State of California
SS.
County of Los Angeles

I, the undersigned, say: | am and was at all times
herein mentioned, a citizen of the United States and
a resident of the County of Los Angeles, over the age
of eighteen (18) years and not a party to the within
action or proceeding; that my business address is 11333
lowa Avenue, Los Angeles, California 90025; that on
November 4, 1988, I served the within Petition for Writ
of Certiorari in said action or proceeding by depositing
true copies thereof, enclosed in a sealed envelope with
postage thereon fully prepaid, in the United States mail
at Los Angeles, California, addressed as follows:

Clerk, United States Robert C. Bonner
Supreme Court United States Attorney
One First Street, N.W. Shari K. Silver
Washington, D.C. 20543 Assistant United States Attorney
(Original and forty copies) 1100 United States Courthouse
312 North Spring Street
Solicitor General Los Angeles, California 90012

Department of Justice
Washington, D.C. 20543

I declare under penalty of perjury that the foregoing
is true and correct. Executed on November 4, 1988, at
Los Angeles, California.

Betty J. Malloy
(Original signed)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0407%3A1. Public record. Not legal advice.